John J. Prentice, Simandl & Prentice, S.C., Attorneys at
Law, 20975 Swenson Drive, Suite 250,
Waukesha, Wisconsin 53186, for School District of Florence County, State of Wisconsin,
referred
to below as the Board.

ARBITRATION AWARD

The Association and the Board are parties to a collective bargaining agreement, which
provides for final and binding arbitration. The Board and the Association jointly requested
that the
Wisconsin Employment Relations Commission appoint Richard B. McLaughlin, a member of
its
staff, to serve as arbitrator to resolve a grievance filed on behalf of Nick Baumgart, who is
referred
to as the Grievant. On October 30, 2009 (references to dates are to 2009, unless otherwise
noted),
a teleconference was held to address an issue of arbitrability raised by the Board. During
that
teleconference, the parties reached an agreement in concept to set separate dates for
evidentiary
hearing on the grievance's arbitrability and on the grievance's merit, with the latter hearing
dates to
be held only if the arbitrability issue was resolved against the Board. After further
discussion, the
parties agreed on those dates. Hearing on the arbitrability issue was conducted in Florence,
Wisconsin on January 7, 2010. The parties submitted briefs and follow-up correspondence
by
January 18, 2010.

ISSUES

The parties did not stipulate the arbitrability issues. The Board states the issue thus:

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Is the grievance procedurally arbitrable?

The Association states the issues thus:

Is the grievance challenging the termination of (the Grievant's) employment with the
District arbitrable?

If so, the parties will hold a hearing on the merits of said grievance before Arbitrator
Richard McLaughlin on February 9-11, 2010.

I adopt the Board's statement of the issue.

RELEVANT CONTRACT
PROVISIONS

ARTICLE IV - TEACHER
RIGHTS

. . .

B. All rules and regulations governing employee activities and
conduct shall be
interpreted and applied uniformly throughout the District. . . .

ARTICLE V ­ FAIR
DISCLOSURE

A. The School District will provide due process to all teachers
considered for
non-renewal. . . .

ARTICLE VI - GRIEVANCE
PROCEDURE

I. Definitions

A. Purpose. The purpose of this procedure is
to provide an orderly
method for resolving differences arising during the term of this
agreement. A determined effort shall be made to settle any such
differences through the use of the grievance procedure. There shall
be no suspension of work or interference with the operations because
of a grievance during the term of this agreement.

B. The grievant is the person or persons making the claim.

C. The term "days" when used, means working school days;
thus
weekends or vacation days are excluded.

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D. For the purpose of this agreement, a grievance is defined
as any
concern regarding the interpretation or application of a provision of
this agreement.

II. Steps

A. The grievant or his/her representative and the appropriate
supervisor
shall first endeavor to settle the matter informally.

B. If the matter is not resolved, the grievance shall be
presented in
writing by the teacher to the appropriate supervisor within twenty (20)
days after the facts upon which the grievance is based occurred, or
first became known. The supervisor shall give his/her written answer
within ten (10) days of the time the grievance was presented to
him/her in writing.

C. If not settled in Steps A and B, the grievance may within
(5) days be
appealed to the Superintendent of Schools. The Superintendent shall
give a written answer no later than ten (10) days after receipt of the
appeal.

D. If not settled in Step C, the grievance may within ten
(10) days be
appealed to the Board of Education. The Board shall give a written
answer within twenty (20) days after receipt of the appeal.

E. The parties agree to follow each of the foregoing steps
on the
processing of a grievance. If the employer fails to give a written
answer within the time limits set out for any step, the employee may
immediately appeal to the next step.

F. The written grievance, and replies from management,
shall give a
clear and concise statement of the alleged grievance, including the
facts upon which the grievance is based, the issue involved, the
section(s) of the agreement alleged to have been violated and relief
sought.

G. The employee representative may assist in processing the
grievance
at any step. . . .

III. Arbitration

A. If the grievance is not satisfactorily resolved or if no
decision has
been rendered within twenty (20) days after the grievant first met with
the Board, the Association may submit the grievance to binding
arbitration.

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B. Within twenty (20) days after such written notice of
submission to
arbitration, the parties shall select a mutually agreeable arbitrator or
utilize a previously mutually agreed upon permanent umpire. If no
selection is jointly made by the parties within twenty (20) days, the
parties shall jointly file a letter with the Wisconsin Employment
Relations Commission requesting the appointment of an arbitrator
from the Commission or its staff in cases of contract violation. In the
case of non-renewal or dismissal, the parties shall request of the
Commission a list of five (5) names from the American Arbitrators
Association. The employer and the employee representative shall
determine by lot the order of elimination and thereafter each shall, in
that order, alternately strike a name from the list, and the fifth and
remaining name shall be the arbitrator. . . .

IV. General Procedures

A. In the event a grievance is filed at such time that it cannot be
processed
through all steps in this grievance procedure by the end of the school term
which if left unresolved until the beginning of the following school term,
could result in irreparable harm to a party in interest, the parties agree to
make a good faith effort to reduce the time limits set forth herein so that the
grievance procedure may be exhausted prior to the end of the school term or
as soon thereafter as is practicable. . . .

ARTICLE IX - DISCIPLINE
PROCEDURE

A. Any outside complaints that may jeopardize a teacher's
professional status,
shall be put in writing by the person making the complaint and shall be
promptly called to the teacher's attention.

B. No teacher shall be dismissed, suspended, reprimanded, reduced
in rank or
compensation or deprived of any professional advantage or otherwise
disciplined without just cause. All written information bearing on any
disciplinary action will be made available to the teacher and the Association.

C. No teacher except those on probation shall be non-renewed
without just
cause. . . .

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BACKGROUND

The issue questions the arbitrability of a grievance (the Grievance) dated September
4.
Fred
Andrist, Director of the Northern Tier UniServ, mailed the grievance to John Prentice, under
a cover
letter which reads thus:

Please find enclosed a grievance on behalf of (the Grievant). Per our conversation,
I will contact you the week of September 7th in response to your suggestion about
arbitrators.

If you have any questions or concerns prior to that, please feel free to contact me.

The grievance form reads thus:

GRIEVANT: Florence Education Association and
(the Grievant)

PRESENTED TO: John Prentice, Attorney for the
District LEVEL: Step E

PRESENTED BY: Fred Andrist

DATE OF FILING: September 4, 2009

STATEMENT OF GRIEVANCE:

(The Grievant) received a letter dated August 25, 2009 that stated he was being
terminated from employment. The letter cited concerns arising out of two basketball
games, December 5 and 16, 2008 and his "contumacious conduct" towards the
referees at those games.

The Union believes this action by the Board is contrary to (the Grievant's) due
process protections and is without just cause.

AREAS OF CONTRACT VIOLATED: (Articles/Sections)

Article IV, Section B

Article V, Section A

Article IX, Section A, Section B, Section C and

All other applicable parts of the Master Agreement deemed to be appropriate as this
grievance progresses . . .

The August 25 letter referred to in the "Statement of Grievance" reads thus:

. . .

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Please be advised that your employment with the School District of Florence County
is being terminated, effective immediately. We have completed our investigation into
the events at basketball games on December 5th and 16th, 2008, and you are being
discharged (1) because of your physical assault of a student at a basketball game on
December 16, 2008, and (2) your contumacious conduct toward referees at basketball
games on December 5th and 16th, 2008.

This behavior is unacceptable under any circumstances, but in light of your recent
employment issues, it is outrageous. Given the fact that educators act in loco parentis,
we believe your conduct reflects complete disregard of the health, safety, and well-being of
students charged with your care and undermines the District's confidence in
your ability to act appropriately in every circumstance.

. . .

Tom Woznicki, the District's Superintendent, wrote the letter and delivered it to the
Grievant on
August 25.

The roots of the Grievance are intertwined with events preceding and succeeding
those
mentioned in the August 25 letter. In September of 2008, the parties executed a
Memorandum of
Understanding (the Memorandum) concerning "the conditions for (the Grievant's) return to
the
classroom during the 2008-09 school year." In January, the Association filed a grievance
concerning
Board termination of the Grievant's position "as coach of the Junior Varsity's boy's
basketball".
The Board denied the grievance. Storm Carroll, Woznicki's predecessor, confirmed the
denial in
a letter to the Grievant dated March 10, which states:

The Board of Education feels that you violated your memorandum of understanding
with the Board by touching the basketball player who testified at the hearing. Your
conduct with referees also violates the agreement. . . .

Subsequent to this, the parties had a dispute that prompted another grievance. The
dispute concerned
whether the Board or the Grievant had an obligation to make the State of Wisconsin whole
for
Unemployment Compensation benefits received under a federal program. These grievances
are
referred to as the Coaching and the UC grievances.

Woznicki became Superintendent in late June. The parties could not resolve the two
grievances prior to his arrival, but he reviewed them and discussed them with Andrist. No
agreement
proved possible. On Woznicki's suggestion, the parties agreed to consolidate them to permit
resolution by a single arbitrator.

Woznicki became familiar with the Memorandum early in his tenure. He did not
believe
Carroll completed the investigation of the events underlying the Coaching grievance, and
believed
the Grievant's compliance with the Memorandum posed ongoing issues. He

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conducted his own investigation. At sometime early in his tenure, before mid-July,
Woznicki,
Andrist and the Grievant met to discuss extension of the Memorandum to address the
Grievant's
teaching duties. The discussion did not reach the Grievant's dismissal, but did address the
possibility.

On August 18, Woznicki phoned Andrist three times to discuss the completion of his
investigation and the preparation of a notice for a Board meeting to address the point.
Woznicki was
not able to reach Andrist. Andrist learned of the Grievant's termination from the Grievant,
after the
Grievant received a copy of the August 25 letter.

Events beyond this point are best covered by an overview of witness testimony.

Tom Woznicki

Woznicki and Andrist did not discuss the August 25 termination during the Step B
time
period. Andrist phoned Woznicki on the morning of September 4 or September 11. Andrist
mentioned the Coaching and UC grievances, but added that he thought Woznicki was doing a
good
job, since he had heard no complaints.

Woznicki acknowledged that he may have told Andrist to speak to Prentice directly,
but
could not recall when the conversation would have occurred. It would have dealt with
Andrist's
questions on the UC grievance. He never advised Andrist to speak to Prentice to his
exclusion.
Woznicki did not specifically authorize Prentice to represent the Board on the Grievance until
after
the close of the school day on September 25. That conversation involved his authorizing
Prentice
to represent the Board's position that no timely grievance had been filed. Association failure
to
grieve the termination seemed "strange" to him. He had advised his staff to replace the
Grievant
with a long-term substitute on the assumption that a grievance would be filed.

Woznicki and Prentice discussed arbitrators for each of the three grievances on two
to
three
occasions prior to September 25. He did not see the Grievance until Prentice forwarded him
a copy
via e-mail on October 6.

John Prentice

Prentice represented the Board on the Coaching and UC grievances prior to the Board
meeting of August 24 and spent some time with Andrist attempting to select an arbitrator.
They
ultimately chose Stanley Michelstetter. While on a teleconference call with Andrist and
Michelstetter to schedule the two grievances, Prentice alerted them to Board consideration of
terminating the Grievant's teaching contract at an upcoming meeting. He asked them to keep
the
matter confidential, and to consider the potential impact of the termination on scheduling.

The August 25 termination letter made the impact actual. Knowing the labor
agreement calls
for the use of AAA arbitration, Prentice again spoke with Andrist and Michelstetter, who
informed
the parties he was a member of the AAA panel. Prentice wanted to select a WERC

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arbitrator, and after considerable discussion, Andrist and Prentice agreed to use a
Commission rather
than an AAA panel.

Prentice had the Grievance in his arbitration file, but was unaware of it until Stephen
Pieroni
supplied him a digital copy of the Grievance and its cover letter via e-mail on October 6, in
response
to Prentice's assertion that the Association had yet to file. The October 6 e-mail is part of a
chain,
starting with a message from Pieroni to Prentice which states:

I spoke to Fred. It is my understanding that Mr. Woznicki advised Fred that you
were counsel for the District and he was to direct correspondence to you concerning
the grievance.

The enclosed correspondence was the result of Fred's conversation w/
Mr. Woznicki
and, apparently with you.

I believe this is the proper procedure. Let me know if we need to discuss.

Prentice forwarded this e-mail to Woznicki on October 6, with a message to "Call Me
. . . Regarding
This."

Prentice had no authorization to represent the Board on the Grievance until late
September.
At no point in his discussions of the Grievance with Andrist, did he believe he could receive
a
grievance filing as a formal step. The discussions on arbitrator selection rested on his
assumption
that a grievance had been filed. At no point in those discussions did Prentice tell Andrist
that he
served as the Board's sole contact for grievance processing.

In response to Andrist's testimony, Prentice testified that Andrist never told him that
he was
going to file the Grievance with Prentice. Prentice has never had a grievance filed with him
prior
to the Grievance, and would not permit it if he was aware of it.

Fred Andrist

Andrist has served in his present position since November 1, 2007 and has served
WEAC
in a collective bargaining capacity since April of 1996. His present duties include serving as
the
business representative for the Association and specifically have included the Grievant's
representation regarding the Memorandum and the three grievances noted above. He was
unaware
that further Board investigation was necessary or contemplated after the Board denial of the
Coaching grievance. He believed that the discussions producing the consolidation of the UC
and
Coaching grievances took place in July. Woznicki and Andrist stipulated to Michelstetter as
arbitrator. It was the first time in his experience that a Superintendent selected an arbitrator.
The
Board uses different attorneys for different issues.

Andrist was unaware of a Board hearing preceding the termination, and believed the
termination traced to the events underlying the Coaching grievance. After learning of the

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termination from the Grievant, he phoned Woznicki to inform him that a grievance
would be filed.
They discussed the termination, including the pendency of the Coaching grievance and its
similarity
to the allegations of the August 25 letter. At some point Andrist noted that the allegations
pointed
to a repeat of the same discussions they had been through regarding the Coaching grievance.
Woznicki responded that he saw no point to that. Andrist understood Woznicki to be
agreeing to
take the Grievance directly to arbitration. Woznicki told Andrist to go ahead and speak
directly to
Prentice. Andrist could not specifically date the discussion, but stated it occurred between
August
25 and September 1.

Andrist spoke to Prentice on September 1. Because the termination was the most
significant
of the three grievances, he started the discussion on it, informing Prentice that Woznicki had
told
him to speak to Prentice directly and that he would put the grievance on in the next several
days.
In a September 1 e-mail to Prentice, Andrist stated:

Please call again when you have better cell phone reception.

Another issue I wanted to discuss with you is the scheduling of the two grievances
with Mr. Michelstetter. I would still like to move at least one grievance forward
(UC), but in light of recent events, I believe we need to reschedule at the least. . . .

At least two conversations followed this. They agreed to use me as arbitrator on
September 17.

Early in the process Andrist asked Pieroni to represent the Association. The first
notice
Andrist received of the Board's arbitrability issue came when Pieroni asked him to supply a
copy
of the September 4 correspondence. Andrist did so in an October 6 e-mail. Prior to sending
this e-mail, Andrist e-mailed Michelstetter to inform me of my selection to hear the
Grievance. In a letter
dated October 5, Andrist formally advised the Commission of the joint request.

Andrist acknowledged he made a call to Woznicki in which he complimented
Woznicki on
his performance to that point. He initiated the call on another point, probably involving a
prep time
issue. He believed the call took place early in the school year, not as early as Woznicki
thought,
because Woznicki would not have been on the job long enough to prompt the comment. He
and
Woznicki met to discuss whether the Board should hire an LTE or a long-term substitute to
replace
the Grievant.

Further facts will be set forth in the
DISCUSSION
section below.

THE PARTIES' POSITIONS

The Board's Brief

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The arbitrability issue centers on "material procedural defects involved with the
Association's processing of the grievance." Article VI states a "very detailed grievance
procedure"
which has as its purpose, the "orderly method" to manage grievances. More specifically, the
Board
notes that Step A demands an effort to informally resolve the dispute; Step B demands a
filing within
twenty work days after the termination; Step C demands an appeal to the Superintendent; and
Step
E demands an appeal to the Board. The evidence demonstrates that the meeting between
Andrist,
the Grievant and Woznicki met Step A, but the evidence also demonstrates no Association
compliance with the remaining steps.

There is no reliable proof that Woznicki told Andrist to deal with Prentice directly or
that
Andrist informed Prentice that he would file the grievance with Prentice. Rather, the
evidence shows
Woznicki authorized direct contact between Andrist and Prentice only regarding the Coaching
and
UC grievances. Further, the evidence establishes Prentice never authorized a direct filing of
the
grievance at Step B, or the waiver of the requirements of any other step. It is undisputed
that the
parties discussed arbitrator selection, but those discussions presumed Association compliance
with
the labor agreement regarding grievance filing. Meaningful discussion between Woznicki
and
Prentice to authorize Prentice to represent the Board on the Grievance did not occur until
"late
September or early October". That Prentice had already received a copy of the Grievance
fails to
demonstrate compliance with Step B, since that filing represents no more than "a courtesy
copy."

Viewed as a whole, the evidence establishes "that assumptions were made and
confusion
resulted." This cannot obscure that "the contractual procedures were not followed." The
contract
governing this dispute is written and any waiver of its requirements should also be written.
In the
absence of written agreement, there can be no waiver of compliance with the Steps of Article
VI.
The evidence makes implication of mutual agreement to permit a grievance filing with
anyone but
Woznicki "outrageous." To permit the grievance to advance "would render the contractual
grievance
procedure meaningless." If Article VI is to have meaning, there must be consequences for a
failure
to comply with it. The mere allegation of an agreement to waive Article VI cannot be
accepted
without reading its requirements out of existence. Against this background, "the arbitrator
(should)
find the grievance is not procedurally arbitrable."

The Association's Brief

After a review of the evidence, the Association contends that "the grievance is
arbitrable
because the parties' representatives, who possessed the authority to represent the respective
parties,
mutually agreed to submit the instant grievance directly to arbitration." "Relevant facts,
logic and
common sense" support this assertion. Beyond this, the Board waived strict compliance with
the
Steps of Article VI.

Logic points away from the Board's view, since Woznicki terminated the Grievant
without
a Board vote, creating an "oddity because only a majority of the school board members have
the
authority", under Sec. 1118.22(2), Stats., "to discharge a teacher." No less

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odd is the effect of requiring the Grievance to be filed with the person most committed
to its denial.
It is undisputed that Andrist and Prentice discussed arbitrator selection in all three grievances
between September 1 and September 17. In fact, arbitrator selection on the Grievance
occurred on
September 17. Against this background, it is impossible to credit Woznicki's testimony that
he had
not authorized Prentice to act regarding the Grievance unit late September. Neither
Prentice's nor
Woznicki's testimony credibly rebuts Andrist's. Andrist acted consistently with his
understanding
that the parties agreed to submit the Grievance directly to arbitration.

At best, Board testimony asserts that Prentice did not read the Grievance and its
cover
letter.
His assertion that he would have referred Andrist to Woznicki if he realized Andrist filed
with him
directly is irreconcilable to his behavior. His behavior is only consistent with processing a
grievance
directly to arbitration. The evidence poses "a multitude of other credibility issues."
Woznicki's and
Prentice's testimony that the Board had not retained Prentice until late September is
irreconcilable
with the effort to stipulate to an arbitrator for the Grievance. That effort is also
irreconcilable to the
assertion that the Grievance was not ripe for arbitration and that it was filed with Prentice as
a
"courtesy copy."

More detailed review of the evidence confirms Andrist's testimony that the parties
agreed
to process the Grievance through Prentice. Andrist and Prentice addressed the Grievance via
phone
and e-mail on September 1. The Grievance and its cover letter confirm this sequence,
which
presumes Andrist and Woznicki spoke on the matter before September 1. Nothing in the
correspondence suggests it was anything other than a direct request to process the grievance.
Detailed analysis of the evidence will not confirm Woznicki's testimony that Andrist did not
discuss
the Grievance with him prior to the expiration of the Step B timeline. That testimony is
"inherently
unreliable." It is irreconcilable to the fact that the parties had a pending grievance on the
same
conduct. It is irreconcilable to Andrist's undisputed behavior with Prentice. It is
irreconcilable to
the Association's refusal to agree to work restrictions proposed by Woznicki in a discussion
to
extend the Memorandum. Woznicki's awareness of the grievance timelines is reflected in his
contact with Prentice in late September to authorize him to represent the Board on the
"untimely"
grievance. In sum, Andrist's conduct is consistent with the assertion that the Association
understood
the parties to have agreed to arbitrate the Grievance. Woznicki's and Prentice's behavior is
consistent with "sharp practice" or with a "set up" to avoid hearing the merits of a known
dispute.

In any event, Board behavior affords "compelling facts in support of a finding that
the
conduct of Woznicki and Prentice amount to a waiver." They were obligated to act if they
thought
the grievance was defective and it is no defense to assert "the cover letter and the grievance
were not
read." Risk of failure to respond to the grievance lies with the Board, "who placed Prentice
in the
position of having the apparent authority to act on behalf of the District on the grievances".
Woznicki's and Prentice's behavior constitutes waiver by inaction. To deny hearing on the
merits
of the grievance would jeopardize "the integrity of the parties' dispute resolution procedure."

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The Association's Reply

Acknowledging the difficulty of challenging "testimony when there is no transcript",
the
Association argues that the Board's brief "takes such liberty with the actual record" that a
response
is necessary. The Association's notes reflect Andrist testified, "I will be getting out the
grievance
to you . . . in the next several days." The Board's brief ignores this, either purposely
leaving it out
or underscoring Prentice is "not being an effective listener of Andrist's actual testimony."

Beyond this, the Board asserts, without any evidence, that it "voted to terminate the
grievant's employment on August 25, 2009." Beyond this, the assertion that Prentice's
attempt to
stipulate to an arbitrator presumed a valid grievance was filed ignores that the Board "did not
offer
any testimony that even remotely supports this contention."

The Board's Reply

Association arguments regarding the quality of Board listening skills ignore that the
parties
agreed at hearing to submit no more than a single, "letter brief." Similarly, those arguments
ignore
that the Association's brief erroneously pegs Woznicki's date of hire as June of 2008. Even
if
Andrist told Prentice he would be "putting out the grievance" or "getting out the grievance"
the
essential point is that "it was a lie--not a case of ineffective listening". Whether or not the
evidence
establishes that the Board voted to terminate the Grievant, the essential fact is that the
termination
decision was the Board's. Without regard to the precision of the testimony on why the
Board sought
to select an arbitrator prior to the filing of a valid grievance, the essential fact is that the
Association
failed to file a valid grievance.

Whatever confusion existed between the parties cannot create a contractually valid
waiver
of Steps B through D of Article VI. In fact, the record establishes that "to this day no
grievance has
been filed so the grievance is not arbitrable!"

DISCUSSION

I have adopted the Board's statement of the issue as that appropriate to the record,
but
find
no substantive difference between the parties' statements. The Association's statement of the
effect
of finding the grievance arbitrable details what was agreed upon following the October
conference
call and is reflected in the scheduling correspondence. The timing of the issuance of this
decision
makes the inclusion of the statement problematic, because my commitment to rule on the
issue prior
to hearing included the possibility of doing so via conference call. Thus, the Board's
statement of
the issue is adopted as the simplest means of stating the dispute.

The October 30 conference call included considerable discussion of Jt. School Dist.
No.
10 v. Jefferson Ed. Asso., 78 Wis.2d 94 (1977), because it was not clear if the Board's
arbitrability
objection posed a substantive or a procedural issue. The former questions whether

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the parties' contract states an agreement to arbitrate the dispute, and poses a question
of law which,
"except by agreement of the parties", is not posed for determination by an arbitrator, 78
Wis2d. at
101. The latter presumes agreement to arbitrate the dispute, but requires the arbitrator to
address
whether the procedures necessary to invoke arbitration have been met. The Board's
statement of the
issue confirms the objection is procedural, but the Jefferson arbitrability analysis bears on
each
aspect of the arbitrability issue. The Jefferson court stated its analysis to require,

a determination whether there is a construction of the arbitration clause that would
cover the grievance on its face and whether any other provision of the contract
specifically excludes it. 78 Wis.2d at 111.

Article VI, Section ID defines "grievance" broadly as "any concern regarding the
interpretation or
application of this agreement." There is no provision that bars arbitration of a dispute on
dismissal
for cause, which is covered by Article IX, Sections B and C. Procedures bearing on the
cause
determination are set forth at Article IV, Section B; Article V, Section A; and Article IX,
Section A.
The grievance cites each provision. Thus, the arbitrability issue is procedural.

Broadly speaking, the parties' arguments break the procedural issue into two
components.
The first is whether they agreed to bypass Steps A through D. Assuming they did not, the
second
is whether the acknowledged non-compliance with the steps should be held against the Board
or the
Association. Each party asserts these issues pose a more factual than contractual dispute,
which
demands resolution of credibility issues.

In my view, the arbitrability dispute is more contractual than factual and does not
pose a
meaningful credibility issue. The Jefferson analysis serves as background, for it highlights
the
need to focus on the contract, first determining coverage, then determining whether a
provision bars
coverage.

The terms of Article VI will not support a bar of the Grievance's arbitration.
Examination
of this conclusion starts with the strength of the Board's case. The factual strength of the
Board's
case is the undisputed non-compliance with Steps A through D. The contractual strength of
the
Board's position rests on the first sentence of Step E. The force of the Board's case is that
there has
not been strict compliance with the Steps of Article VI and that barring arbitration upholds
the
integrity of the contract language.

The Board's position has force, but is not ultimately persuasive. The assertion that
barring
arbitration is demanded by the contract ignores that the contract is silent on how to sanction a
procedural misstep. There is no provision that an untimely grievance is waived. More
significantly,
Article VI points a different direction. The second sentence of Step E does not use waiver to
sanction Board failure to meet time limits. Rather, it points to use of the process. Article
VI, Section
IA demands "a determined effort shall be made to settle any such differences through the use
of the
grievance procedure." This cannot be read as a general

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excuse of Association failure to comply with the Steps, but the reference, "through the
use of the
procedure", affords no support for a bar of arbitration for any failure to strictly comply with
the
Steps. Similarly, Article VI, Section IVA mandates "a good faith effort to reduce the time
limits"
where a grievance is filed that could linger through the summer, causing "irreparable harm".
This
provision points to substantial compliance with Article VI.

Beyond this, the parties' processing of the Grievance affords little basis to conclude
they
contemplated strict compliance with Article VI. Section IA demands a "determined effort . .
. to
settle", yet the parties mutually discussed arbitrator selection prior to the application of Step
B. The
Board's assertion that meetings held prior to August 25 can "arguably" comply with Step A
asserts
something other than strict compliance with Article VI. The absence of clear evidence
regarding the
start of the school year in 2009 does not support strict compliance. Article VI, Section IC
counts
"days" as "working school days." It is unclear when the twenty days of Step B ended,
because it is
unclear when they began. Beyond this, it is difficult to reconcile how meetings with the
Superintendent comply with Steps A, B and C, when two of those steps refer to "the
appropriate
supervisor" and the other refers to "the Superintendent." Ignoring the language difference,
would
strict compliance with Article VI demand three separate meetings with the same management
representative? It may be that each step can be handled by the Superintendent, but this
points to
substantial, rather than strict, compliance with Article VI. Standing alone, the parties'
willingness
to modify the application of Article VI, Section IIIB affords a solid basis to conclude their
conduct
is guided by substantial rather than strict compliance with Article VI.

This does not mean that the contract will not permit a bar to arbitration to address
procedural violations. Rather, it points out that Article VI does not favor it. This
underscores the
need to examine the facts to determine if asserted Association non-compliance reasonably
warrants
barring arbitration of the Grievance.

It requires no evaluation of witness credibility to conclude that barring arbitration has
limited
factual support. Putting aside whether the parties agreed to submit the Grievance to
arbitration, the
only evident flaw under Article VI regarding the Grievance is the absence of Woznicki's
specific
inclusion. Whether or not Woznicki and Andrist agreed to submit the Grievanc directly to
arbitration, it is undisputed that they had previously discussed the substance of the Coaching
grievance as well as Woznicki's concerns regarding the Memorandum and issues regarding
the
Grievant's teaching contract. Both Woznicki and Prentice expected a grievance and were
sufficiently aware of its content to consider the issue of arbitrator selection. Thus, any
misstep posed
no issue of surprise and no issue of delay. Against the contractual background sketched
above,
barring the Grievance's arbitration would be punitive.

Before closing, it is appropriate to tie this conclusion more closely to the parties'
arguments,
which focus on witness credibility. Their arguments stretch the evidence too thin. Neither
Woznicki
nor Andrist could date the conversation prompting the asserted agreement, much less detail
its
content. There is agreement that discussion was generally held regarding

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the similarity of the Grievance to the Coaching grievance and specific discussion of
direct
communication between Andrist and Prentice regarding the two pending grievances.
Andrist's
behavior clearly establishes his belief that the conversation pointed the Grievance to direct
discussions with Prentice on arbitration. The e-mails from September 1 through October 6
are
consistent with this, culminating in Association surprise at the arbitrability challenge. There
is no
evident basis to conclude Andrist lied about anything. Why would he resort to a fabrication
that
gained him less than including Woznicki on the September 4 correspondence would have?

The issue is similar regarding Woznicki and Prentice. Their conduct is consistent
with their
explanation of it. Characterizing their conduct as illogical affords no insight on why either
would
resort to a fabrication that gained them no more than the chance to persuade a grievance
arbitrator
that the best recourse for a procedural misstep is to bar arbitration. Even if plausible, this
affords
little insight into their conduct. If Woznicki and Prentice were plotting to avoid arbitration,
why
would Prentice freely acknowledge he received the September 4 grievance? What prompted
Woznicki to call Andrist three times to bring him into the preparation of a notice for the
August 24
Board meeting if he was about to embark on a mission to shield the matter from arbitration?
The
October 6 e-mail manifests no less surprise on the Board participants' part than on the
Association's.
The similarity of the testimony on the various discussions cannot reasonably be attributed to
a
conscious attempt on either party's part to misrepresent them. However illogical the
"sitcom"
explanation Prentice offered is portrayed, it accounts for his and for Woznicki's conduct.
That
Woznicki counted the days to arbitration manifests hope that the struggle would end rather
than the
culmination of a "set up".

There is little reason to believe Andrist, Woznicki and Prentice left a series of
discussions
with a common understanding. Andrist understood the Grievance to be the most important
priority
of the litigation surrounding the Grievant. When he spoke with Woznicki regarding
contacting
Prentice directly on the UC and Coaching grievances, he would have considered the
Grievance's
filing a certainty. There is no reason to doubt that he discussed the parallels between the
Grievance
and the Coaching grievance and every reason to believe he saw little basis to distinguish
them.
Woznicki, unlike Andrist, saw a clear divide between the two grievances and had no reason
to view
the Grievance as anything but a possibility. At the time Andrist and Prentice first spoke,
Prentice
had only two priorities he was authorized to handle, the UC and the Coaching grievances.
He had,
potentially, the opportunity to assume responsibility for the Grievance. That he took a step
in that
direction by discussing the selection of an arbitrator is not remarkable conduct from an
advocate.
Against this background, it is unsurprising that the participants took different meanings from
the
substance of their discussions. The meaning they took from the discussions confirmed the
priorities
they brought to the discussions.

Against this background, finding a credibility issue unpersuasively strains the
evidence,
offering individual design where the evidence shows mutual misunderstanding. The certainty
provided by finding testimony incredible undercuts what is clearest from the evidence
­ the parties
did not share a common view of what their discussions demanded. The certainty sought

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by their arguments distorts the evidence, and fails to reliably account for their
behavior. Andrist and
Woznicki were developing a bargaining relationship from scratch. Prentice was even newer
to the
process. The vagueness and confusion of the testimony on crucial fact is less reconcilable to
fabrication than with the limits of honest recall. Viewing the evidence as a whole, the
Board's
assertion of procedural irregularity is technical in nature. There is, under any view of the
evidence,
no basis to find that the Association acted contrary to what it understood to be mutually
agreed-upon
compliance with Article VI. In sum, barring the Grievance's arbitration lacks a reasonable
basis in
the contract and the parties' conduct.